P L D 1961 (W (PLP)

SHABIR AHMAD, J.‑Mian Muhammad Saeed, a resilent of Circular Road, Ward No. 3 Kunjah, District Gujrat, was elected as a member and afterwards as the Chairman of the Town Committee, Kunjab, District Gujrat. Some allegations of misconduct and abuse of power were levelled against him. An inquiry was held under the directions of the Collector Gujrat, who was the controlling authority, whereupon a notice was served upon Mian Muhammad Saeed, under rule 4 of the West Pakistan Local Councils (Resignations and Removal of Members) Rules, 1960, (to be referred to hereinafter as the Rules) to show cause why action should not be taken against him. The explanation sent by Mian Muhammad Saeed did not find favour with the Collector of Gujrat. who referred the matter to the District Council under sub‑rule (3) (b) of rule 4 of the Rules as was incumbent under clause (4) of Article 25 of the Basic Democracies Order. 1959 (President's Order No. 18 of 1959), (to be referred to hereinafter as the Order). The District Council fixed 13th of August 1960 for considering the case of Mian Muhammad Saeed and notice to that Affect was served on him. By this time, Mr. Abdul Latif, C. S. P., who had initiated proceedings against Mian Muhammad Saeed, had been transferred from Gujrat and had been succeeded by Mr. Muhammad Yaqoob Khan. Mian Muhammad Saeed tendered his resignation to the new Collector and that officer accepted it on the 13th of August 1960. A by‑election as contemplated by clause 24 of the Order was ordered and Mian Muhammad Saeed and Allah Ditta, a Waraich Jat of Shadiwal, Tehsil and District Gujrat, filed nomination papers. The nomination papers of both the candidates were. accepted by Mr. Muhammad Saeed Vattoo, Magistrate 1st Class, Gujrat, who had been appointed the returning officer for the by‑elcetion.~ Allah ‑ Ditto has presented this writ petition %G i th a view to having the nomination papers of Mian ,;uhaininad Saeed, respondent No. 3 in this petition, respondent No. 1 being Mr. Muhammad Saeed Vattoo, and respondent No. 2 1961 HIGH COURT LAHORE 4'81 being ,the controlling authority through the Collector Gujrat, Allah Oxta declared invalid. Muhammad

2. At the hearing, the petition was resisted by Mian Saeed Vatoo Muhammad Saeed. respondent No. 3, while the other two Shabir respondents, though served, did not appear. The facts, a gist Ahmad, i of which has been given in the last paragraph, were not dis puted by respondent No. 3, and the only point about which the learned counsel for the parties addressed arguments was whether respondent No. 3 could, after having resigned his membership, contest a by‑election to the seat that became vacant because of his resignation.

3. Before dealing with the contentions raised by the learned counsel for the parties on the main point, 1 would dispose of the one raised by learned 'counsel for respondent No. 3 with regard to the maintainability of the petition. Mr. Muhammad Akram, learned counsel for respondent No. 3, urged that because it would be open to the petitioner to seek redress by means of an election petition in case respondent No. 3 beat him in the by‑election, this Court had no jurisdiction to issue a writ. To support this contention, the learned counesl relied on some remarks in Milakraj v. Jagdish Chandra and others (1), wherein it was said that in cases to which the facts were similar to those that obtained in the present case power to issue a writ should not be exercised. It is not necessary to consider whether the remarks in the case on which the learned counsel for respondent No. 3 relied are a correct exposition of law, because no exposition of law has been made. Whether or not jurisdiction to issue a writ should be exercised must depend on the circumstances of each case. If, however, there was a provision in the relevant law that no writ could issue if another remedy was open the objection raised by the learned councel for respondent No. 3 would have been tenable, but as no law contains a provision to the above‑mentiond effect, it is obvious that the issue of writ has been left entirely to the discretion of the Court. The general rule is that this Court will not ordinarily issue a writ if another equally efficacious remedy is open to the person who seeks the extraordinary remedy of a writ, but the power to issue writ in matters in which writ can issue is unlimited and whether or not it should be exercised must necessarily depend on the facts of each case. The circumstances in the present case are that if the nomination paper of res‑ A pondent No. 3 should have teen rejected but has . been accepted, unnecessary expense and waste of time would occu if the election is allowed to proceed. In these circumstances, even though another remedy may be open to the petitioner, this Court will not hesitate to exercise its extraordinary juris diction of issuing a writ. The contention of the learned counsel for respondent No. 3., therefore, that no writ could issue is without force and is repelled.

4. Learned counsel for the petitioner urged that Mr. Muhammad Yaqoob Khan, Collector, Gujrat, could not have accepted the resignation of respondent No. 3 because it was (1) A I R 1957 Raj. 293 clearly mentioned in the Rules that the resignation of a member agai ,.;t .y~:~o,tl proceedings for removal are pending shall not be accepted. The contention of the learned counsel for the petitioner to tile effect that the resignation should not have 4een accepted has great force,, but the point that requires determination at this stage is whether the acceptance of re signation can be ignored. In this connection, clause (1) of Article 25 of the Order is material. This clause reads as follows:‑ "

25. Resignation, and removal of members: (1) .Any member of a L.)cal Council may resign his office by tendering his resignation to the Chairman, and if he is the Chairman, to the Controlling Authority, and the seat 'of the member, or the office of Chairman, as the case may be, shall become vacant when the resignation is accepted by the Controll ing Authority." It will be noticed that the clause says that the seat of a member, whose resignation has been accepted by the competent autnority, shall become vacant on the acceptance of the resignation. That being so, it is clear that in spite of the fact, that; in the circumstances of the case, the resignation of respondent No. 3 should not have been accepted by the Collector, the acceptance of the resignation has resulted in the vacation of the seat as a member which respondent No. 3 had held, and the by‑election was validly ordered. But I might mention that if the conten tion that as the resignation of respondent No. 3 could not, in the circumstances of the case, have been accepted it shall be deemed not have been accepted, had prevailed, it would have been necessary to' pass an order dismissing the petition on the short ground that no by‑election being competent till respondent No. 3 had been removed from his membership, the petitioner could not approach the Court for an order which would declare the acceptance of the nomination papers of respondent No. 3 as invalid, because that step becomes necessary only when an election or by‑election is to take place.

5. The next contention of learned counsel for the petitioner was that having resigned his membership, respondent No. 3 could not seek election to the seat which he had voluntarily vacated. Sardar Muhammad lqbal, Advocate, .supported this contention of his on two grounds, one being of a general character and the other based on the language employed in Article 24 of the Order. The argument based on general principles was this. If a person has voluntarily ceased to be a member, it is anomalous, that he should, within a short period of the vacation of the seat, again seek election to the same seat. No doubt the position appears to be anomalous but on the general plane the action of a person who had resigned his membership, in seeking election to the seat from which he had resigned, could not be held to be opposed to any principle of law or justice. Cases may arise in which the g resignation was actuated ~by some circumstances which changed shortly after and did not exist at the time when a by‑election to fill up the seat vacated on account of the resignation took ,l ,place. An elected member may, for example, want to vacat his seat because he intends to enter into business but after he had resigned his seat, he might happen to lose the money with which he intended to start business. It is clear that in these circumstances the desire to seek re‑electien will be open to no objection of a valid character. Cases of this type can be multiplied and it cannot, therefore, be laid down as a general principle that a person who had resigned his seat could not seek re‑election to the same seat. b. I will now deal with the contention of the learned counsel for the petitioner which was.based on Article 24 of the Order. . This clause reads as follows :‑ "

24. Casual tacancr .‑1f the seat of an elected or appointed member becomes vacant during the term of office of a Local Council, a new member shall be elected or appointed, as the case may be, and such member shall hold office for the residue of such term." In his arguments learned counsel for the petitioner placed his entire reliance on the words "new member" which occur in this clause. His contention was that the use of the word "new" made it clear that the law‑maker did not want a person who had gone out. to seek re‑election to the seat which he had vacated. In support of his contention .the learned counsel relied on Bankim Chandra Dutra and others v. Khagendra Nath Gan guli and others (1), which was a case under section 27 of the Bengal Municipal Act, 18$

4. It appears to me that this decision has no relevancy in the present case, because the words used in section 27 of the Bengal Municipal Act, 1884, were so different from those used in Article 24 of the Order, that the decision of the Calcutta High Court can be of no assistance at all when trying to arrive at the correct interpretation of Article

24. It is clear that no person who is not disqualified from seeking election is debarred from contesting a seat. Causes which may lead to a disqualification of a person from seeking election to Basic Democracies are given in Schedule 11 of the Order, and resignation from membership is not mentioned as one of them, In these circumstances, the use of the words C " new member" which occur in Article 24 of the Order cannot suffice for the Courts laying down that if a person has resigned his seat, he cannot seek election to the same seat when a by‑election to fill it is held. It inay be that if respondent No. 3 is elected, the controlling authority can again take up the case which was pending against him and the result might be his removal from membership, but till an order of removal is passed, respondent No. 3 will continue to be a member and will be disqualified from being a member for the period fixed by the controlling authority under clause (4) of Article 25 of the Order. The contention of learned counsel for the petitioner that respondent No. 3 had adopted unfair means in resigning his membership when the fate of his membership was to be decided by the District Council, Gujrat, is not without force, but the fact that it may be thought by a Court that the means adopted by respondent No. . 3 were unfair is no ground for its being held by the Court that the petitioner was (1) A I R 1933 Cal. 443 disqualified from being a member, unless the use of those means are declared by the law to be a disqualification, which is not the case.

7. In view of what I have said above, I will dismiss this petition, but would leave the parties to bear their own costs. S. A. MAHMOOD, J.‑I agree. . Petition dismissed,